Ashok Kumar Saini vs Shakuntala Devi

Sudhanshu Dhulia, J

The present writ petition arises out of the proceedings in a revenue matter. The order challenged by the petitioner before this Court is the order dated 04.06.2015 passed by the Board of Revenue, Uttarakhand in Second Appeal No. 159/2013-14.

At this juncture, it must be stated that in a revenue matter as far as merits are concerned, all findings stands conclude with the second appeal before the Board of Revenue. This Court in a writ jurisdiction can only exercise supervisory power and review the findings of the subordinate courts, to a very limited extent.

The brief facts of the case are that a suit was filed by the petitioner under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 for division of his holdings, being bhumidhar of the land. In the plaint, it was said that the defendant no. 1 and defendant no. 5 in the suit, inter alia, are maternal aunt (Mausi) and mother, respectively of the plaintiff. It was alleged that the plaintiff and the respondents have an equal 1/2 share of a property which has been divided between them as per a partition done before their community, but now the defendants have an evil design and they want to take away the property of the plaintiff as well, and therefore he needs a partition of the holdings. The suit was decreed ex parte. Later on a review petition was filed, which was also dismissed. In the review petition, for the first time, the defendants placed before the court a family partition of the year 1979 on the basis of which a partition decree was granted by the revenue court in the same year dividing 16 bighas of land, out of which 4 bighas of land was given to the present petitioner and 4 bighas of land was given to his mother and the remaining 8 bighas of land was given to his maternal aunt (Mausi) i.e. Shakuntala Devi. It appears that the property of which a division was actually made belong to maternal grandfather of the plaintiff i.e. the petitioner before this Court. Since he had two daughters, one Narayani Devi and another Shakuntala Devi, he had given equal share i.e. 8 bigha of land to them. Thereafter it appears that since by that time Narayani Devi had lost her husband i.e. the father of the petitioner and remarried, the 8 bigha of land which was in her share was equally divided between Narayani Devi and the petitioner as per the settlement of the year 1979. Based on that partition, there is also a decree of the court.

This was, however, not considered by the learned Assistant Collector and the review petition, in any case, was dismissed vide order dated 17.06.2013. Subsequently, the respondent before this Court filed an appeal, which was also dismissed by the learned appellate court vide order dated 19.07.2014. Thereafter, the defendant (respondent before this Court) filed a second appeal before the Board of Revenue, Uttarakhand, Dehradun, in which the Chairman, Board of Revenue appreciated the decree of the court dated 09.08.1979 which was granted on the basis of settlement, allowed the second appeal and set aside the two orders dated 17.06.2013 and 19.07.2014 passed by the Assistant Collector and the first appellate authority, respectively. Aggrieved, the plaintiff (petitioner before this Court) has filed the present writ petition.

Since family settlement dated 09.05.1979 had already taken place and all the respective parties were in occupation of their respective holdings, there was no occasion for the plaintiff to rake up the matter after a period of more than 25 years and that too without disclosing to the court the fact that there has been a settlement and based on that settlement a decree of partition had also been passed.

The learned counsel for the petitioner now states that in 1979 the petitioner was a minor and the settlement, etc. is of no value. All the same, this assertion of the petitioner is before this Court for the first time. Moreover, this fact is also not evident either from the record of the court below. Therefore at this stage, this plea will not be accepted.

Therefore, in the first place, the plaintiff/petitioner has not approached the court with clean hands. Both the courts below i.e. the court of Assistant Collector and the first appellate authority inspite of having knowledge of the settlement and the decree did not act upon them, which is wrong. They ought to have considered the decree as that goes to the root of the matter. Therefore, this Court finds no anomaly in the judgment dated 04.06.2015 passed by the Board of Revenue.

Consequently, the writ petition fails and is hereby dismissed.